Regulating Hate Speech in the Bolivian Media: Underlying Issues

JURIST Guest Columnist Silvio Waisbord of George Washington University says the "anti-racism" law recently passed in Bolivia is a result of deep divisions in the country, but that it won't help, and may actually hamper, civil discourse about those issues...

On October 10th, Bolivian President Evo Morales signed a new "anti-racism" law. Expectedly, the decision, as well as the preceding debates in Congress, generated much controversy. Amidst growing political polarization since Morales took office in 2006, dissimilar reactions to the law reflect the profound divisions in Bolivia's politics and society. The presidential tenure of Morales, the country's first indigenous president in a country with an indigenous majority, has been a flashpoint for old ethnic and racial conflicts. In a society with a history of institutional and everyday racism, this law comes in the footsteps of public comments and events revealing entrenched racist attitudes and behaviors.

Two articles of the law have been the subject of heated debate in the press and the country. Article 16 stipulates that news companies that publish racist and discriminatory ideas will be punished financially and that their licenses will be suspended. Article 23 states that neither journalists nor media owners who make racist comments can claim immunity.

Hostile reactions from large media as well as opposition from major business groups were not surprising. On October 7th, leading newspapers, except for those sympathetic to the Morales administration, featured the headline "There is no democracy without freedom of expression" against blank front pages. Journalists' unions and publishers' organizations supported street mobilizations and strikes against the law throughout the country. They hold that the law unmistakably shows the administration' s intention to muzzle the press. They have urged the President to eliminate the articles that specifically make reference to the press. Some organizations suggested that individuals who make racist comments in the press, not journalists or news companies, should be punishable.

In contrast, other journalists' organizations (including international organizations like Reporters sans Frontiéres and the World Association of Community Radio Broadcasters), human rights groups, and social groups defended the law. While supporting the goal of the legislation, some of these groups have suggested modifications to eliminate ambiguity, punish media companies that openly champion racism (rather than just reporting hateful speech), and ensure that the law meets international standards about free speech (like the American Convention on Human Rights). In their view, the law is necessary to address racist declarations and calls to violence in the media. They have often made reference to recent examples of hateful speech. In 2008, when President Morales was scheduled to visit the Province of Beni, a local radio anchor declared "The damned indian can' t put a foot in this area." When the police detained him, he appealed to his freedom of expression rights. Radio journalists have also been accused of inciting violence against indigenous peasants in recent years and creating a climate ripe for hate crimes.

What is at stake are competing approaches to how societies should deal with hateful speech. One position, espoused by media publishers and journalists' organizations, argues that codes of ethics, not laws, should regulate speech. Any form of legislation, especially in a country with a long tradition of discretional enforcement of press laws, inevitably leads to censorship. Even if the law is aimed at curbing racist speech, it will have chilling effects. The instrument is, in their view, the wrong one to discourage bigotry and racism. The other position endorses an "activist" conception of press legislation according to which laws are valuable instruments to promote a socially responsible press. It subscribes to the notion that regulating speech is necessary to avoid the excesses of free expression and to promote civic values. Members of the ruling party in Congress tried to assuage concerns by stating that the real target of the law is the call to hateful speech and violence rather than racist comments made by individuals.

The law, as well as the reactions, must be understood in the context of the tense and acrimonious relationship between President Morales and the most powerful media. News organizations based in the Eastern regions of the country have offered non-stop critical news of the President since he took office. The press has been at the helm of a defiant, and at times ferocious, opposition based in the so-called "Media Luna," the resource- rich area that comprises the states of Beni, Pando, Santa Cruz and Tarija. Frustrated with the situation, President Morales and members of his cabinet have accused journalists and media owners of racism, and called for actions to "educate" the media (whom he has called his "main enemy"). Yet the conflict is grounded not only on political differences. It is inseparable from perceptions and prejudices in the painful history of class and ethnic relations. The spat over the law reflects a long tradition of distrust and violence.

Moreover, in a country where governments historically tried to control the press through legal means (or naked violence during frequent authoritarian regimes), the conflict puts in evidence that the most sensitive and difficult aspect is not the content of the legislation. Aside from whether press laws are adequate instruments to redress century-old racism, the crucial issue is the uncertainty about the application of any press law. Concerns about arbitrariness run high. In a politically polarized country, impartiality and fairness are under question. In such a climate, regulation can quickly become censorship, as critics warn. Press laws can be easily mobilized for political goals rather than to right a presumed wrong.

Yet to simply argue that free expression will take care of hateful speech, or that the latter is naturally expected in a democratic society, is insufficient. It avoids a complex problem in contemporary media-saturated societies. It does not address abysmal inequalities in access to public expression as they exist in Bolivia. Nor does it account for how to promote civic discourse amidst hateful talk and a toxic political atmosphere.

The law demonstrates deep-seated problems and suspicions in a country with mile-long fissures and toxic politics. The case reflects the consuetudinary problems for regulating speech in countries with a weak tradition of democratic accountability. A divided society, where consensus is seemingly impossible, makes that challenge all the more difficult.

Despite these challenges and the important goal of addressing a long tradition of racism and oppression, journalist organizations rightfully express legitimate concerns about how the government may use this power for other purposes. Amidst a volatile political situation, the law alone will not successfully address this complex social problem.

Silvio Waisbord is Associate Professor and Director of Graduate Programs in the School of Media and Public Affairs at George Washington University. He is the editor-in-chief of the International Journal of Press/Politics. He is the author of the 2000 book Watchdog Journalism in South America.

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